Community and Cultural AffairsHOME / LABOUR RELATIONS / LABOUR RELATIONS BOARD / Role of the Labour Relations Board What is the role of the Labour Relations Board in certifying an union?Terminal Date The Labour Relations Board sets a terminal date for each application. The terminal date is the deadline for the filing of all relevant documentation. This would include reply documents, interventions, all membership evidence, petitions/statements of desire and counter-petitions. An interested party who does not file documents on or before the terminal date may be deemed by the Board to have abandoned any claim to be a party to the application. In general industry, the terminal date is usually twenty-one (21) days beginning the day after notices of the application are mailed to the employer for posting. As a general rule, the terminal date is only extended in circumstances where affected employees have not received sufficient notice of the application. The Board may extend or abridge the timing for filing documents. This extension or abridgement does not alter the terminal date for the filing of membership evidence, or objections by employees. Notification The Board notifies all interested parties of the filing of the application. Notice to the employer includes:
The affected employees are notified of the application for certification by the posting of a notice to employees at the work site. The Notice to Employees informs them of the application, the terminal date and the procedures and requirements for filing objections to the application, if any. Employers are required to post this notice in a place or places where it is most likely to come to the attention of all affected employees. This notice is to remain posted on the premises until the close of business on the terminal date. The employer is requested to advise the Board of posting. Membership Evidence To establish membership support the trade union must submit to the Board evidence of membership in its trade union. The Board accepts evidence of membership in the form of applications for membership and/or certified trade union records, which must be accompanied by receipts for initiation fees or for dues. All evidence of membership in the applicant trade union must be filed with the Board on or before the terminal date. Membership evidence is confidential and for the exclusive use of the Board. It is not disclosed except with consent of the Board. Without employer consent, trade unions and employees are not ordinarily permitted to gather membership evidence on the employer's premises during an employee's working hours. Objections to Certification An objection to the application filed by an employee is called a statement of desire. The Board refers to an objection filed on behalf of a group of employees as a petition. If a statement of desire/petition is filed by an employee who previously signed a membership card, the statement of desire/petition, if voluntary, will tend to cast doubt on the membership evidence submitted by the trade union. When an employee signs both a card and a statement of desire/petition this is referred to as an overlap. An overlap will call into question the membership card submitted on behalf of that employee and raise concern as to whether it still represents the wishes of the employee. An overlap can cast doubt on the percentage of support enjoyed by the trade union, for purposes of determining whether a vote will be held. If sufficient overlap exists, the Board may order a representation vote even in circumstances where the trade union might have otherwise been entitled to outright certification. The Board does not consider the statements of desire/petition from employees who have not previously signed a membership card or who are not employees of the bargaining unit as these employees have no effect on the degree of employee support for the trade union. The Board will only consider a statement of desire/petition that is an expression of the true wishes of the employee(s). A statement of desire/petition that is the result of influence or intimidation by the employer or the collector of the signatures will be disregarded as involuntary. The Board will dispose of the application without considering the statement of desire/petition of any person(s) who does not appear and give evidence in person or by representative at the hearing of the matter. A person or representative appearing must present evidence that includes testimony as to the circumstances concerning the origination of the statement of desire/petition and the manner in which each signature on the statement/petition was obtained. Statements of desire and petitions are for the exclusive use of the Board. The names of the employees signing these documents are not disclosed except on consent of the Board. Establishing the number of employees in the bargaining unit on the date of application The Board determines the number of employees in the bargaining unit on the date of application from the employee lists or schedules which the employer is required to complete and file with their Reply. Upon receipt, a copy of these schedules is forwarded to the trade union which must file any objections with the Board, prior to the hearing date. The trade union is given the opportunity to challenge the list before a determination is made as to the number of employees in the bargaining unit. If no reply, schedule or signatures of affected employees are filed by the employer, the Board will act on the information supplied by the trade union in the application and declaration concerning membership documents. Calculating the percentage of support: The count The Board, after a review of the Reply and based the level of membership support for the trade union amongst employees in the bargaining unit, will make a determination on whether to dismiss the application, certify the trade union, or order a representation vote to determine the wishes of the employees in the bargaining unit. The Board determines this level of support by comparing the number of employees in the bargaining unit on the date of application with the number of employees who were members in good standing in the trade union on the terminal date. As noted, voluntary objections can cast doubt on this level of support. In general industry, the number of employees in the bargaining unit on the date of application includes all employees at work on the date of application and those employees not at work who worked in the bargaining unit at any time during the 30-day period prior to the application date, and returned to work or are expected to return within the 30 days following the application date. Both conditions must be met. This is referred to as the 30/30 rule. In the construction industry, the number of employees in the bargaining unit is the number of employees actually at work and engaged in their trade on the date of application. The application for certification must be supported by at least a simple majority of the employees in the bargaining unit, or it will be dismissed. In the construction industry, the Board must certify a trade union when a majority of the employees in the bargaining unit have selected the applicant trade union to be their bargaining agent. Certification without majority support In certain circumstances, the Board has the discretion to refuse to certify a trade union despite the submission of the membership evidence on behalf of a majority of employees in the bargaining unit. The Board can exercise this discretion where there are three factors present:
A hearing is not always required in certification proceedings. The Board has the discretion to dispose of an application based on the documentation before it without holding a hearing. This generally occurs in circumstances where the four elements of a successful application are present and where the parties consent to the matter being disposed of without a hearing. If a party requests a hearing, it is required to include in its application, reply or intervention, as the case may be, a brief statement of the facts it intends to rely on at the hearing, the remedy requested, and its submissions in support of this request. A party requesting certification without a hearing must set out in its application a statement in support of the request. If in a construction application, the Board dismisses the application or certifies a trade union without a hearing, the trade union or employer, as the case may be, may, within ten days of the order, request a hearing, which the Board must hold. Hearings can be held before a panel consisting of the Chairperson or a Vice-Chairperson and two other members of the Board equally representative of employees and employers. The Chairperson generally has discretion to direct how a panel will be constituted. In exercising this discretion the Chairperson will consider the nature of the duties and functions required by the Board, the circumstances of the particular matter to be determined, the representations of the parties, if any, and any other factors that the Chairperson considers relevant. The Certificate The Board will issue an Order either granting the application, dismissing the application or consenting to the withdrawal of the application. A certification order contains the proper name of the trade union, the proper corporate name of the employer, a description of the bargaining unit and the date of certification. Once certified a trade union immediately replaces any other bargaining agent that may have represented employees in the unit. The trade union has the exclusive authority to bargain on their behalf and to bind them by a collective agreement until such time as the certification order is revoked. If any other trade union had previously been certified in respect of employees in the unit their certification for those employees shall cease to operate and will be deemed to be revoked. Contact Charlottetown Walsh, Hazel (Administrative Assistant - Labour Relations Board)
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